(CN) - A Nevada law that bans legal brothels in the state from advertising in counties where prostitution is illegal will not face a Supreme Court review.
Two Nevada newspaper publishers had joined the owner of the Shady Lady Ranch in suing over a state law that prohibits advertisements for prostitution from circulating in areas where the practice is illegal.
The Shady Lady operates in Nye County, one of nine Nevada counties that regulates prostitution. Prostitution is also legal in Nevada's Carson City, an independent city, but it is prohibited in highly populated counties, including Clark, which is home to Las Vegas.
The High Desert Advocate and Las Vegas CityLife both circulate in Clark and sued since the law blocks advertising dollars from the state's many legal brothels.
In declining to take up the case, the Supreme Court on Tuesday leaves a March 2010 decision from the 9th Circuit in place. The San Francisco-based federal appeals panel had found that the brothel and newspapers did not have a First Amendment claim because prostitution is a "vice" with unique social and legal characteristics that must be regulated by the state.
That decision had reversed a federal judge's ruling that the state's advertising restrictions were unconstitutional because they reach beyond pure commercial speech. The 9th Circuit's reversal notes that Nevada has a valid interest in regulating "the commodification of sex."
"Taking into account the quite unique characteristics, legal and social, of prostitution, we conclude that Nevada's regulatory scheme is consistent with the First Amendment," the three-judge panel ruled.
While Nevada's regulations might target commercial speech, legislators have the authority to place greater restrictions on sex-related activities because they are generally disfavorable and so should be treated differently.
"Whether the law ought to treat sex as something, like babies and organs, that is 'market-inalienable,' or instead should treat it as equivalent to the sale of physical labor, is a question much contested among legal academics and philosophers," the unanimous ruling states.
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